Citation NR: 9718110
Decision Date: 05/22/97 Archive Date: 06/03/97
DOCKET NO. 95-35 209 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Seattle,
Washington
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for a
psychiatric disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
James R. Siegel, Counsel
INTRODUCTION
The veteran served on active duty from June 1960 to May 1961.
By rating decision in July 1968, the Regional Office (RO)
denied the veteran's claim of entitlement to service
connection for a psychiatric disorder. He was notified of
this decision and of his right to appeal, but a timely appeal
was not perfected.
Recently, the veteran submitted additional evidence seeking
to reopen his claim for service connection for a psychiatric
disorder. By rating action in May 1995, the RO determined
that the evidence submitted by the veteran was not new and
material, and the prior denial of for service connection for
a psychiatric disorder was affirmed.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that the evidence he has submitted is
new and material, warranting reopening of his claim and a
grant of service connection for a psychiatric disorder. He
claims that he was abused on the rifle range during service.
He reports that he was hospitalized in service because he
fired a shot at his own car while under the influence of
alcohol. He refers to statements from family members that
establish he acted differently after service as compared to
his pre-service behavior.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file.
Based on its review of the relevant evidence in this matter,
and for the following reasons and bases, it is the decision
of the Board that new and material evidence has not been
submitted to reopen a claim of entitlement to service
connection for a psychiatric disorder.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. By decision in July 1968, the RO denied the veteran's
claim of entitlement to service connection for a psychiatric
disorder.
3. He was informed of this decision and of his right to
appeal, but a timely appeal was not perfected.
4. The evidence added to the record since that determination
is essentially similar to and cumulative of the evidence
previously considered, is not probative of the issue at hand,
and when evaluated in light of all the evidence of record,
both new and old, does not raise a reasonable possibility of
changing the prior outcome.
CONCLUSIONS OF LAW
1. The July 1968 decision denying service connection for a
psychiatric disability is final. 38 U.S.C. 4005(c) (1964);
38 C.F.R. § 19.153 (1968).
2. The evidence received since the RO denied service
connection for a psychiatric disorder in July 1968 is not new
and material, and the veteran’s claim for that benefit has
not been reopened. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131,
1137, 5107, 5108, 7105 (West 1991 & Supp. 1996); 38 C.F.R.
§§ 3.104(a), 3.156(a), 3.303(c), 3.307, 3.309, 20.302 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Factual Background
The evidence considered in connection with RO’s determination
in July 1968 included the service medical records, a summary
of a hospitalization in 1963 and the report of a Department
of Veterans Affairs (VA) hospitalization in 1968.
The service medical records disclose that the veteran was
hospitalized in February 1961. It was reported that he had
been seen by psychiatrists on two previous occasions for
uncontrollable outbursts of rage and impulsive acting out by
going AWOL. The veteran claimed to be unable to read or
write. It was noted that he was frequently involved in
hostile interactions which resulted in violent acting out.
Allegedly, after such an argument on the day prior to
admission, while drinking, the veteran used a rifle to shoot
the back fender of his own automobile. It was indicated that
in his developmental years, the veteran characterized himself
as an individual who would be most impulsive in his behavior,
frequently given to temper tantrums, and prone to use alcohol
excessively. Following an examination, it was concluded that
the veteran suffered from emotional instability reaction.
A summary of a hospitalization in May 1963 discloses that the
veteran was admitted following an attempted suicide. A
mental status evaluation showed that his mood was mildly
depressed. His judgment was impaired. The diagnosis was
emotionally unstable personality, attempted suicide.
The veteran was hospitalized in a VA facility beginning in
June 1968. He had been transferred from a private State
hospital. A history of three previous hospitalizations for
treatment of a psychiatric disorder was noted. It was
indicated that the veteran developed overt signs of emotional
disturbance in service. He related that he was always
rebelling against authority. He reported that he had held at
least twenty jobs since his separation from service. He
stated that he became periodically depressed, but that these
episodes lasted for at most three days. During such times,
he was suicidally preoccupied, and had difficulty
concentrating. The diagnoses were depressive reaction with
suicidal tendencies and passive-aggressive personality.
Based on this evidence, the RO, by rating action in July
1968, denied service connection for a psychiatric disorder on
the basis that compensation benefits were not payable for a
personality disorder.
The veteran was admitted to a State facility in May 1968. A
history of several suicide attempts was noted. It was
indicated that the veteran was very immature and had a low
tolerance for stress. It was noted that he had a personality
trait or pattern disturbance of the inadequate type with
recurrent depressive reaction. The diagnostic impression was
depressive reaction with suicidal tendencies.
The VA hospital report shows that the veteran was
hospitalized from June 1968 until February 1970, when he was
administratively discharged after having been on unauthorized
absence for one year. The diagnoses remained as stated
above.
A State Department of Mental Hygiene report indicates that
the veteran was hospitalized in October 1969 with a diagnosis
of explosive personality.
The veteran was hospitalized in a State hospital in October
1972. He exhibited extreme anxiety. The diagnosis was
passive-aggressive personality disorder.
When hospitalized in the same State hospital beginning in
1973, it was noted that the veteran appeared hostile and
angry, with apparent delusions of persecution. The diagnosis
was inadequate personality disturbance with paranoid
features.
Following a private hospitalization in July 1981, the
diagnosis was depressive disorder, acute, precipitated by
difficult circumstances and a sense of helplessness and
hopelessness concerning the future.
VA outpatient treatment records dated in October 1993 show
that the veteran was distrustful of others. He reported
vague auditory hallucinations. Following an evaluation, the
assessment was probable schizophrenia, paranoid type.
During a hearing at the RO in November 1995, the veteran
testified that he was treated for psychiatric complaints
shortly after his discharge from service. He submitted
statements from his sister and mother. His sister related
that he was hospitalized following an attempted suicide in
1964 or 1965. His mother stated that he had changed during
service, and was a different person following his separation
from service than he had been prior to service.
Analysis
The veteran is seeking service connection for a psychiatric
disorder. In general, under the law and VA regulations,
service connection may be granted for disease or injury
incurred in or aggravated by military service. 38 U.S.C.A.
§ 1131.
Where a veteran served 90 days or more during a period of war
or during peacetime service after December 31, 1946, and a
psychosis becomes manifest to a degree of 10 percent within
one year from date of termination of such service, such
disease shall be presumed to have been incurred in service,
even though there is no evidence of such disease during the
period of service. This presumption is rebuttable by
affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101,
1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309.
Congenital or developmental defects, refractive error of the
eye, personality disorders and mental deficiency as such are
not diseases or injuries within the meaning of applicable
legislation. 38 C.F.R. § 3.303(c) (1996).
The evidence added to the record since the 1968 determination
includes the discharge summary from the VA hospitalization
which began in June 1968, and private and VA medical records
dated from 1972 to 1993. Based on a review of the record,
the Board concludes that the additional evidence submitted in
support of the veteran's claim is merely cumulative, rather
than new and material. Accordingly, the claim is not
reopened, and the RO’s decision remains final.
When a veteran seeks to reopen his or her claim under 38
U.S.C.A. § 5108, the Board must first conduct a two-step
analysis. Manio v. Derwinski , 1 Vet.App. 140 (1991);
38 C.F.R. § 3.156(a). First, the Board must determine
whether the evidence presented or secured since the prior
final disallowance of the claim is new and material when “the
credibility of the [new] evidence” is presumed. Justus v.
Principi, 3 Vet.App. 510, 513 (1992). Second, if the
evidence is found to be new and material, the Board must
reopen the claim and review all of the evidence of record to
determine the outcome of the claim on the merits. See Jones
v. Derwinski, 1 Vet.App. 210, 215 (1991).
The first step of the analysis involves three questions: (1)
Is the newly presented evidence “new” (that is, not of record
at the time of the last final disallowance of the claim and
not merely cumulative of other evidence that was then of
record)?; (2) Is it “probative” of the issues at hand?; and
(3) If it is new and probative, then, in light of all of the
evidence of record, is there a reasonable possibility that
the outcome of the claim on the merits would be changed?
Evans v. Brown, 9 Vet.App. 273 (1996). The newly presented
evidence need not be probative of all the elements required
to award the claim, but need be probative only as to each
element that was a specified basis for the last disallowance.
Id. at 15. The prior evidence of record is vitally important
in determining newness as well as the reasonable possibility
of a changed merits outcome for purposes of deciding whether
to reopen a claim. Id.
Since the veteran did not perfect a timely appeal from the
1968 rating decision, that determination became final and is
not subject to revision on the same factual basis. 38
U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 20.302. In order to
reopen his claim, the veteran must present evidence which is
deemed to be new and material with respect to the claim which
has been disallowed. 38 C.F.R. § 3.156(a).
New evidence means more than evidence which was not
previously physically of record. To be “new,” additional
evidence must be more than merely cumulative. Colvin v.
Derwinski, 1 Vet.App. 171, 174 (1991). However, even if the
additional evidence is relevant and probative, it must be
demonstrated that this evidence, when viewed in the context
of all the evidence, both new and old, would change the
outcome. Smith v. Derwinski, 1 Vet.App. 178 (1991).
“New” evidence is that which is not merely cumulative of
other evidence of record. “Material” evidence is that which
is relevant to and probative of the issues at hand and which
... ,must be of sufficient weight or significance (assuming
its credibility) that there is a reasonable possibility that
the new evidence, both new and old, would change the outcome.
Cox v. Brown, 5 Vet.App. 95 (1993).
The veteran asserts, in effect, that he has an acquired
psychiatric disorder which is related to service. However,
as a lay person, he lacks the capability to provide evidence
that requires specialized knowledge, skill, experience,
training or education. Espiritu v. Derwinski, 2 Vet.App. 492
(1992). The evidence he has submitted either relates to
treatment years after service or recent treatment and is
essentially similar to evidence previously of record. The
Board recognizes that the recently submitted evidence
reflects various diagnoses, including a personality disorder,
depressive reaction and schizophrenia. It is significant to
point out, however, that there is no competent medical
evidence linking any current psychiatric disorder to service.
The veteran has not submitted any competent evidence linking
an acquired psychiatric disorder to service.
The United States Court of Veterans Appeals (Court) has held
that if the determinative issue involves medical causation or
a medical diagnosis, competent medical evidence is required.
Grottveit v. Brown, 5 Vet.App. 91 (1993). Thus, the
veteran's lay assertions to the effect that he has an
acquired psychiatric disorder related to service are neither
competent nor probative of the issue in question. Indeed, in
Moray v. Brown, 5 Vet.App. 211 (1993), the Court noted that
lay persons are not competent to offer medical opinions and,
therefore, those opinions do not even serve as a basis to
reopen a claim for service connection.
In the absence of competent medical evidence of record
demonstrating that the veteran's current psychiatric disorder
is the result of service, the Board must find that his
attempt to reopen his claim of entitlement to service
connection for a psychiatric disorder is unsuccessful because
the evidence he has submitted does not raise a reasonable
possibility of changing the outcome of this case. Therefore,
the recently submitted evidence is not new and material, and
the RO’s decision of 1968 remains final.
The veteran testified that he was seen on only one occasion
during service and had numerous subsequent psychiatric
hospitalizations following service. He appears to argue that
this did not provide an adequate basis on which to base a
diagnosis.
As noted above, in Justus, 3 Vet.App. 510, the Court set
forth the general principle that the Board must presume the
credibility of testimony for determining whether such
evidence is new and material. The Court has also observed,
however, that there is an exception to this principle where
the testimony concerns a matter beyond the party’s competence
or is inherently incredible.
The Board finds that the veteran's conclusion that he has an
acquired psychiatric disorder related to service is
contradicted by the record. The service medical records show
only a personality disorder and, as noted above, there is no
competent medical evidence linking any current psychiatric
disability to service. In addition, the Board notes that the
veteran was evaluated for an extended period and the
diagnosis was not based simply on one visit. Thus, the
veteran's testimony as to the onset of his psychiatric
disorder is not credible. His testimony does not provide a
basis on which it may be concluded that the additional
evidence is new and material so as to reopen his claim for
service connection for a psychiatric disorder. 38 C.F.R. §§
3.104(a), 3.156(a).
ORDER
New and material evidence not having been submitted to reopen
a claim of entitlement to service connection for a
psychiatric disorder, the appeal is denied.
RONALD R. BOSCH
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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